THE literature on Right to Information in India has grown exponentially in the last decade or so, in tandem with the rise and spread across the nation of what was an embryonic grassroots struggle in Rajasthan in the early ’90s. Today, savouring as we do the passage of a historic and path-breaking national right to information law, there could not be a more appropriate time to situate the few pages of this act in the larger historical and still-evolving discourse on the subject.

Prima facie, three aspects stand out while scanning the extensive Right to Information (RTI) literature in India. First, there is a significant and marked shift in the entire discourse from the mid-’90s onwards. The phrase ‘right to information’ has earned a new meaning and interpretation in the Indian context, spawning a literature distinct from its western counterpart around ‘freedom of expression’. Second and more recently, ‘right to information’ has found growing mention in connection with a vast spectrum of topics – from public distribution systems to elections, dams and disappearances. The documentation also points to an increasing recognition of its practical relevance across all classes of society.

Finally, it is striking that there is little ‘anti’ literature on the subject – it is apparent that the ‘adversaries’ of the right to information have consistently maintained a staunch façade of silence behind their actions. It is telling that while concrete battles are being fought against them day after day and stories of resistance abound, not a single bureaucrat or politician appears to have directly or openly penned their resentment against this powerful concept and tool.

From ‘freedom of expression’ to ‘freedom of life and liberty’ – constitutional expert Subhash C. Kashyap encapsulated the difference between ‘freedom of information’ and ‘right to access to official information’ as:

* ‘Freedom of information meaning free flow or unhindered dissemination of information is fully covered by the right to freedom of thought and expression. Freedom of the press also flows from it and freedom of communication is a part of it… Right of access to information is usually talked about in the context of the citizen having a fundamental right to have a free and full access to official information in regard to matters of state and governance… this right of access to information actually flows from the sovereignty of the people. In a democratic polity, almost by definition, every individual is capable of governing himself and ultimate sovereignty vests in the people…Information is power and belongs to the people. It cannot be denied to them and must be furnished on demand.’¹

The constitution does not specify right to information or even right to freedom of the press, but these have been read into the constitutional guarantees which are a part of the chapter on fundamental rights, which includes the Right to Equal Protection of the Laws and the Right to Equality Before the Law (Article 14), the Right to Freedom of Speech and Expression [Article 19(1)(a)] and the Right to Life and Personal Liberty (Article 21).² From the landmark Bennett Coleman and Co. vs. Union of India case,³ the State of U.P. vs. Raj Narain case⁴ to those involving civil liberties, consumer rights and environmental issues, the Supreme Court has given a dynamic interpretation to these rights through its judgments, upholding more than once the ‘Right to Know’ as an essential part of the Right to Freedom of Expression [Article 19(1)(a)].

 

Making the case for a separate law on the right to information, V.M. Tarkunde had remarked at the workshop organized by the Press Council of India in 1996:

‘…what is necessary, however, is not merely to recognize the people’s right to know what the government does, but to pass a law making it easy for the people to exercise that right… We in India require a comprehensive act which can be used by the people, including social activists and investigative journalists, to secure information on topics of either individual or public importance.’⁵

But the remarkable clarity with which this demand materialized was not the outcome of a bunch of academicians, legal experts and intellectuals huddled together in esoteric debate. It arose naturally from the day-to-day struggles of poor farmers and peasants in Rajasthan, who mobilized themselves with a vision to develop a tool that would help them fight their basic battles effectively: for minimum wages, for food, water and health. In one stroke they redefined the entire discourse globally, not only on the right to information, but its larger framework of accountability, democracy, ethics and the language of rights.

 

The contents of the Press Council’s draft Right to Information Bill formulated in 1996 and every draft submitted thereafter from the campaign symbolises this conceptual makeover: the simple, intuitive understanding of the term right to information defined by people struggling for livelihoods and basic needs (or, in the ‘rights’ parlance, the right to life and liberty), over a limited and high-sounding assertion of the concept as contained within the constitutional right to the freedom of expression. Any literature or public debate on RTI in India from then on is clearly dominated by the former.

The legal literature on RTI in India is thus simply inseparable and even irrelevant without an understanding of the processes shaping the evolution of this demand. In trying to decipher the right to information movement then, it may make sense to juxtapose the literature on RTI as a legal entitlement with that on RTI as an instrument in the hands of the people to fight corruption and the arbitrary use of power.

 

From Information to Accountability and Beyond: Away from the legal tussles and surreptitious calculations in the capital’s corridors of power, real battles were being played out in the arid countryside of central Rajasthan. The conception, emergence and evolution of the Mazdoor Kisan Shakti Sangathan (MKSS), a movement of small farmers and labourers which spearheaded the RTI movement in Rajasthan, is well-articulated and extensively documented.⁶

The origins were simple. In the movement’s own words,⁷ ‘It was in fighting for minimum wages under government programmes that the MKSS first understood the significance of transparency and the right to information. It was necessary to access records, to prevent corruption, to try and obtain the minimum wage, and to ensure that infrastructure actually got built.’ It was only a matter of time before this apparently little struggle transformed into ‘a means of monitoring ethics in political practice; exposing the hypocrisy and double-speak between policy objectives and policy as it is implemented; and finally as a route to ensure modes of participatory democracy.’

 

The concrete experiences of MKSS spanning more than a decade of its working has brought with it some poignant lessons. Crystallising the links between information, accountability, democracy and ethics, Aruna Roy writes:⁸

‘The role of public debate and the right to question cuts both at the roots of bureaucracies and feudalism. Forcing the sharing of information begins the process of shared decision-making, and consequently the sharing of power. Grabbing state power through political parties will then only exist as a corollary to the continual accountability of the representatives and public servants to the sovereign members of the public…

‘But the process of sharing information goes beyond all this into making the people and the rulers alike look at the information and become part of a responsible and ethical debate. This responsibility forces all of us to look into the logic of each one of our statements, and the need to take a democratic and fair decision forces us all to bring in the question of ethics…

‘In the application of the right to know, the whole gamut of situations of injustice, undemocratic behaviour and the inequality in government action has become apparent. Whether it is the violence on women, the official grabbing of land for liquor factories, the appropriation of natural resources, or the misuse of funds meant for the poor. The activist burden it places on those who use it, prevents the setting in of cynicism and apathy. The first reaction to asking a question is that you will be questioned yourself, and the process of action and reaction itself leads to an environment of transparency.’

These links, intangible as they may seem, have concretely come alive in peoples’ practical struggles in obtaining information, in demanding a law and then, in attempting to use it to its logical end. Of course, this has taken different paths in different states, each bringing with them enriching lessons. Before going into the literature which captures this, a brief review of developments on the legal front might be in order here.

 

A chronological legal account from the early ’90s till date, which details the efforts to institute right to information as a statutory right, is amply documented in the commentaries of the MKSS, the National Campaign for the Right to Information (NCPRI) which was formed in 1996, Commonwealth Human Rights Initiative (CHRI) and state-specific movements and organizations involved in the struggle for RTI.⁹ The process of law-making itself generated substantial writings. The makings of a national right to information law, paradoxically, took seed in a meeting of civil servants, lawyers and social activists at the Lal Bahadur Shastri National Academy of Administration, Mussoorie in October 1995 initiated by some serving officials of this institute and denoted a watershed in the national movement on the right to information.

The workshop proceedings of the Press Council of India in 1996, deriving from this earlier meeting, gave rise to the first draft bill on RTI. Careful thought was given not only to what information could be sought under the law but also what could not.¹⁰ At the time, the bill envisaged the applicability of the RTI not only to the state but the corporate and NGO sectors as well. A draft by the Consumer Education Research Council (CERC) followed, proposing an outright repeal of the Official Secrets Act 1923. In 1997, the Government of India constituted a committee under the chairmanship of consumer activist H.D. Shourie to draft a legislation. In its report, the committee improved on the Press Council draft by explicitly bringing the judiciary and legislatures under the purview of the proposed legislation, but diluted its provisions in most other crucial aspects.

 

Put on the backburner with a change of guard at the Centre in quick succession, the Shourie draft reincarnated in an even weaker form as the Freedom of Information (FOI) Bill in 2000. It was finally passed in 2002 during the NDA government’s tenure but never notified. The struggle for a strong national RTI law received a shot in the arm with the new UPA government committing to it in its Common Minimum Programme. Upon the NCPRI’s recommendations, the National Advisory Council submitted its draft to the government in August 2004, which was worked on by the Department of Personnel and Training and the ‘invisible hand’ of nameless bureaucrats to be finally tabled in Parliament in December 2004 as the Right to Information Bill.¹¹

Both the FOI Bill 2002 and the draft RTI Bill 2004 evoked criticisms in their own right, in so far as they violated the basic tenets of a strong and tenable right to information law (of maximum disclosures, independent appeal, penalties and effective mechanisms for access to information).¹² Although the latter represented a step forward from the FOI in various aspects,¹³ it crucially restricted the applicability of the proposed law to central government offices only. Predictably, both times, the handiwork of uncomfortable bureaucrats ensured that the bills went through similar processes of dilution. But as mentioned earlier, none of the opposition to the right to information was penned down openly.

 

In the meanwhile, some state governments took the initiative to pass RTI laws or orders incorporating certain provisions for disclosures.¹⁴ Wherever the demand for it sprung from the people, the laws too were stronger or more effectively enforced.

The RTI Bill 2004 was referred to a Parliamentary Standing Committee which came out with its report in April 2005. Its recommendations, commendably, attempted to bring the derailed bill right back on track. When the bill finally came up for discussion in Parliament on 11 May 2005, it looked fairly close to the original NAC draft, and was passed in this form. A reading into these different versions of the bill clearly reveals a ‘bargaining’ process – what dilutions were attempted, and how they were checked.

 

Documentation and media coverage on the practical uses of RTI in states which have legislations or fought for one have markedly increased since the late ’90s onwards, offering some interesting lessons and indicating the shape of things to come.

After the first level of struggle of obtaining information, which is still at various stages in different states, the use of this information has also taken varied routes. The most widely documented by far has been the MKSS-institutionalised mode of jan sunwais (or public hearings) ascribed in writings as a powerful method of social audit that provides a ‘more neutral and open platform for democratic expression’ compared to protests, to expose corruption (initially in village panchayat works).¹⁵

The dramatic results of the infamous Janawad scam¹⁶ in 2001 brought out the potency of this instrument in taking the right to information to its logical end. More recently in urban Delhi, a group of young activists under the banner Parivartan, have successfully replicated the mode of social audit in slum and resettlement colonies, exposing corruption in public works and the public distribution system (PDS) and bringing about dramatic changes in its working. While the platform of jan sunwai has gained immense popularity, the dangers of not following the requisite steps in conducting a true social audit, and hence degenerating into a meaningless exercise, remain.¹⁷

In this context, Rob Jenkins and Anne Marie Goetz observe:

‘Chetna Andolan, an activist group in the northern state of Uttar Pradesh (India’s most populous), held a jan sunwai in early 1997, but failed to build the necessary popular following, or to sensitise local people and officials to the purpose and larger relevance of this exercise. The negative result demonstrated, among other things, that a movement’s impact is critically conditioned by the route through which people arrive at the decision to assert that information is theirs by right.’¹⁸

This has, by far, remained true of the government-initiated social audits in Rajasthan¹⁹ and the now legally instituted people’s audits through ward sabhas at the village level.

 

In Maharashtra, where the movement for the right to information and anti-corruption has also been vibrant, colourful examples exist of how RTI has been put to test. The literature is revealing. Unlike in Rajasthan, the use has been more in the urban areas, for both individual and public ends. Often, the legal route rather than jan sunwai has been used as follow-up. The strong penalty clause inbuilt in the state’s law has also acted as an effective deterrent. Recently, the state chief minister disclosed that 32 officers in various departments had been fined Rs 1.43 lakh for not providing information to the public or for giving incorrect or false information under the act.²⁰

 

On the other hand, there are cases where blatant misuse of office have been unearthed but no action taken. The exposè by Pune-based activist Major Jatar, of the indiscriminate use of official cars placed at the disposal of Pune Municipal Corporation officers for non-official trips outside Pune, including pilgrimages, and the subsequent inaction is a case in point where the user of RTI expressed that judicial intervention seemed the only recourse left.²¹ In states like Karnataka, where an RTI Act exists, the statistics on non-responses and struggle even to get information are telling.²²

An entire offshoot literature which aims at disseminating information on and arising from the use of RTI in various states has also emerged. The practical experiences of MKSS and Parivartan in obtaining information, conducting a social audit, resistance faced and final outcomes have been captured on film, and in enlightening documentaries for the uninitiated. Simple pamphlets and resource books laying down the basics of how to use the RTI law in different states have been created.²³

Enabled by the recent set of Election Commission measures on transparency, an entire literature marking the larger debate on electoral reforms and participatory democracy has been generated. The phenomenon of ‘Election Watch’ has freed up substantial information on the personal background of politicians contesting elections, resulting in voter’s guides, pamphlets, manuals and even films on the electoral process. Similar manuals are being written on the PDS.²⁴ In a move with far-reaching consequences, the Maharashtra government has decided to introduce RTI in its secondary school curriculum starting academic year 2006-07.²⁵

 

Certain unmistakable threads of thought as well as uncharted grounds in the right to information movement in India emerge from this selective literature survey.

As C.P. Joshi, former minister Panchayati Raj, Rajasthan retorted to an unhappy pradhan at a jan sunwai in Nokha block, Bikaner district, ‘The right to information is here to stay. It has become a part of the Constitution, whether we all like it or not. These social audits will happen. The sooner we accept this, the better we will be able to use our rights.’²⁶ The positive experience in the practical use of RTI has brought immense hope that challenges the pall of cynicism and passive acceptance about the cancer of corruption. The flip side is that, as the evidence clearly demonstrates, the onus of responsibility of using this right is on us, the citizens. It is a weapon that will get sharper with use, failing which it will degenerate and remain confined to the statute books.

 

Second, the mode of jan sunwai and the process it rests on implies the inevitability and power of collective action in taking on corruption. Yet, here too, questions remain unanswered. How can social audit move from panchayat or public works to other spheres of governance? How can it be used for vigilance in areas outside financial accountability, for instance for auditing the performance of functionaries? Finally, what are the remedies available to the individual citizen or group, if a public authority is established as guilty in a people’s audit and yet no action is taken?

This brings us to the fact that the use of right to information has not been a cakewalk even where the law is in place. In so far as this is the result of faulty methodologies by the users, there is still hope for meeting with success upon correction. But in the very real event of the state going against the law, or feigning indifference despite the law, the struggles become much harder, requiring a great deal of energy and persistence. While a strong legal framework is not sufficient, it is surely necessary (such as imposing stringent penalties) in facilitating the struggles of ordinary people. The passage of a strong RTI law at this juncture brings resounding hope and a massive opportunity to take the struggle against corruption and in restoring ethical and participative democracy in our country forward by leaps and bounds.

 

Footnotes:

* This literature survey is based only on a selection of readings and does not claim to be an exhaustive review of all material on RTI in India.

I would like to acknowledge Vivek Ramkumar, Shekhar Singh, friends at the MKSS, Rajasthan and CHRI, New Delhi for the help in pointing to and providing material for this literature review.

1. Subhash C. Kashyap, ‘Right to Information’. Paper presented at the workshop organized by the Press Council of India, 10-11 August 1996.

2. Harsh Mander and Abha Joshi, ‘The Movement to Right to Information in India’, mimeo, n.d.

3. AIR (1973) SC 106.

4. Perhaps the strongest formulation and formal recognition of RTI as implicitly guaranteed by the Constitution was in the case of State of U.P. vs. Raj Narain [AIR (1975) SC 865], where the respondent had summoned documents pertaining to the security arrangements and the expenses thereof of the then prime minister. Justice K.K. Mathew said, ‘In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security. To cover with veil of secrecy, the common routine business, is not in the interest of the public. Such secrecy can seldom be legitimately desired. It is generally desired for the purpose of parties and politics or personal self-interest or bureaucratic routine. The responsibility of officials to explain or to justify their acts is the chief safeguard against oppression and corruption.’ Source: ‘The Movement to Right to Information in India’, Harsh Mander and Abha Joshi, op.cit.

5. V.M. Tarkunde, ‘Right to Information and Accountability of the State.’ Paper presented at the workshop organized by the Press Council of India, 10-11 August 1996.

6. MKSS CD of select writings, articles and other reports.

7. ‘From Information to Accountability – Reclaiming Democracy’, MKSS Writings.

8. Aruna Roy, ‘Information, Democracy and Ethics’, Twelfth B.V. Narayan Reddy Memorial Lecture, Bangalore, 1 February 2000.

9. See www.humanrightsinitiative.org/programs/ai/rti/india/national.htm for an up to date account. For a concise account of both national and state-specific developments till 2003, see www.infochangeindia.org/RighttinfoIbp.jsp, Background and Perspective by Anu Kumar in InfoChange News and Features, June 2003.

10. See Rajeev Dhawan, ‘Boundaries to the Right to Information’, mimeo, n.d.

11. Different versions and drafts both to the run-up to the FOI Bill 2002 and the RTI Bill 2004 are available on www. humanrightsinitiative.org/programs/ai/rti/india/national.htm. The various state laws are available both on www.human and www. righttoinformation.info.

12. Critiques of the bills are available on www.righttoinformation.info and www. humanrightsinitiative.org.

13. A comparative chart is accessible on www.righttoinformation.info

14. So far, nine states have passed Right to Information (RTI) laws in their respective states. They are: Tamil Nadu, Goa (1997), Rajasthan, Maharashtra (2000 and 2002), Karnataka, Delhi (2001), Jammu and Kashmir, Assam, Madhya Pradesh (2003).

15. An informative account of this can be viewed on an MKSS video CD, ‘People’s Audit to Fight Corruption.’

16. The entire Janawad episode is documented in great detail in ‘Gram Panchayat Janawad, Panchayat Samiti Kumalgarh Zila Rajsamand mein avadhi varsh 1994-5 se 1999-2000 ke madhya karaye gaye nirmaan karyon ke bauthik satyapan evam vishesh janch ka prativedan’, 20 July 2001.

17. A detailed critique is found in MKSS writings, ‘Critique of Social Audits’ and Background note for the workshop on ‘Institutionalisation of Social Audit and Public Vigilance’, held at HCMRIPA, Jaipur on 7 January 2002.

18. Rob Jenkins and Anne Marie Goetz, ‘Accounts and Accountability: Theoretical Implications of the Right to Information Movement in India’, Third World Quarterly 20(3), 1999, pp. 603-22.

19. Following the Janawad scam and the findings of the Bannalal Committee Report, in an order dated 12 December 2001, the Rajasthan state government mandated the holding of detailed social audits in the highest spending gram panchayats of every block across the state within 15 days. Source: Critique of Social Audits, MKSS writings.

20. In an instance, 19 officers attached to the Thane Municipal Corporation have been fined Rs 60,500 for violating the provisions of the act, while five officers in the Ratnagiri district collector’s office were fined Rs 39,500. Source: ‘Right to Infomation Act Alive and Kicking in Maharashtra’, Deccan Herald, 17 January 2005.

21. ‘Official car misuse continues: now they hire vehicles and bill PMC’, The Indian Express, Pune Newsline, 9 February 2005.

22. Findings of the ‘Implementation Audit’ of KRIA Katte jointly conducted by PAC, Bangalore and CHRI, New Delhi. The assessment was conducted in two phases: November 2002-April 2003 and May 2003.

23. Source: CHRI.

24. ‘Public Distribution System: understanding the food and civil supplies process’, Centre for Equity Studies, December 2004.

25. ‘Right to Know: to be taught in your school’, Express Newsline, 22 December 2004.

26. ‘People’s Audit to Fight Corruption’, Video CD from MKSS.